§2255. Federal custody; remedies on motion attacking sentence
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
A motion for such relief may be made at any time.
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
(June 25, 1948, ch. 646,
Historical and Revision Notes
1948 Act
This section restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis. It provides an expeditious remedy for correcting erroneous sentences without resort to habeas corpus. It has the approval of the Judicial Conference of the United States. Its principal provisions are incorporated in H.R. 4233, Seventy-ninth Congress.
1949 Act
This amendment conforms language of section 2255 of title 28, U.S.C., with that of section 1651 of such title and makes it clear that the section is applicable in the district courts in the Territories and possessions.
Amendments
1949-Act May 24, 1949, substituted "court established by Act of Congress" for "court of the United States" in first par.
Section Referred to in Other Sections
This section is referred to in sections 753, 1825 of this title; title 18 section 3006A; title 21 section 848.
Approval and Effective Date of Rules Governing Section 2254 Cases and Section 2255 Proceedings For United States District Courts
Postponement of Effective Date of Proposed Rules and Forms Governing Proceedings Under Sections 2254 and 2255 of this Title
Rules and forms governing proceedings under sections 2254 and 2255 of this title proposed by Supreme Court order of Apr. 26, 1976, effective 30 days after adjournment sine die of 94th Congress, or until and to the extent approved by Act of Congress, whichever is earlier, see section 2 of
RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS
(Effective February 1, 1977, as amended to January 4, 1995)
APPENDIX OF FORMS
Model form for motions under 28 U.S.C. §2255.
Model form for use in 28 U.S.C. §2255 cases involving a Rule 9 issue.
Effective Date of Rules; Effective Date of 1975 Amendment
Rules, and the amendments thereto by
Rule 1. Scope of Rules
These rules govern the procedure in the district court on a motion under 28 U.S.C. §2255:
(1) by a person in custody pursuant to a judgment of that court for a determination that the judgment was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such judgment, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack; and
(2) by a person in custody pursuant to a judgment of a state or other federal court and subject to future custody under a judgment of the district court for a determination that such future custody will be in violation of the Constitution or laws of the United States, or that the district court was without jurisdiction to impose such judgment, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.
Advisory Committee Note
The basic scope of this postconviction remedy is prescribed by 28 U.S.C. §2255. Under these rules the person seeking relief from federal custody files a motion to vacate, set aside, or correct sentence, rather than a petition for habeas corpus. This is consistent with the terminology used in section 2255 and indicates the difference between this remedy and federal habeas for a state prisoner. Also, habeas corpus is available to the person in federal custody if his "remedy by motion is inadequate or ineffective to test the legality of his detention."
Whereas sections 2241–2254 (dealing with federal habeas corpus for those in state custody) speak of the district court judge "issuing the writ" as the operative remedy, section 2255 provides that, if the judge finds the movant's assertions to be meritorious, he "shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." This is possible because a motion under §2255 is a further step in the movant's criminal case and not a separate civil action, as appears from the legislative history of section 2 of S. 20, 80th Congress, the provisions of which were incorporated by the same Congress in title 28 U.S.C. as §2255. In reporting S. 20 favorably the Senate Judiciary Committee said (Sen. Rep. 1526, 80th Cong. 2d Sess., p. 2):
The two main advantages of such motion remedy over the present habeas corpus are as follows:
First, habeas corpus is a separate civil action and not a further step in the criminal case in which petitioner is sentenced (Ex parte Tom Tong, 108 U.S. 556, 559 (1883)). It is not a determination of guilt or innocence of the charge upon which petitioner was sentenced. Where a prisoner sustains his right to discharge in habeas corpus, it is usually because some right-such as lack of counsel-has been denied which reflects no determination of his guilt or innocence but affects solely the fairness of his earlier criminal trial. Even under the broad power in the statute "to dispose of the party as law and justice require" (28 U.S.C.A., sec. 461), the court or judge is by no means in the same advantageous position in habeas corpus to do justice as would be so if the matter were determined in the criminal proceeding (see Medley, petitioner, 134 U.S. 160, 174 (1890)). For instance, the judge (by habeas corpus) cannot grant a new trial in the criminal case. Since the motion remedy is in the criminal proceeding, this section 2 affords the opportunity and expressly gives the broad powers to set aside the judgment and to "discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate."
The fact that a motion under §2255 is a further step in the movant's criminal case rather than a separate civil action has significance at several points in these rules. See, e.g., advisory committee note to rule 3 (re no filing fee), advisory committee note to rule 4 (re availability of files, etc., relating to the judgment), advisory committee note to rule 6 (re availability of discovery under criminal procedure rules), advisory committee note to rule 11 (re no extension of time for appeal), and advisory committee not to rule 12 (re applicability of federal criminal rules). However, the fact that Congress has characterized the motion as a further step in the criminal proceedings does not mean that proceedings upon such a motion are of necessity governed by the legal principles which are applicable at a criminal trial regarding such matters as counsel, presence, confrontation, self-incrimination, and burden of proof.
The challenge of decisions such as the revocation of probation or parole are not appropriately dealt with under 28 U.S.C. §2255, which is a continuation of the original criminal action. Other remedies, such as habeas corpus, are available in such situations.
Although rule 1 indicates that these rules apply to a motion for a determination that the judgment was imposed "in violation of the . . . laws of the United States," the language of 28 U.S.C. §2255, it is not the intent of these rules to define or limit what is encompassed within that phrase. See Davis v. United States, 417 U.S. 333 (1974), holding that it is not true "that every asserted error of law can be raised on a §2255 motion," and that the appropriate inquiry is "whether the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice,' and whether [i]t . . . present[s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' "
For a discussion of the "custody" requirement and the intended limited scope of this remedy, see advisory committee note to §2254 rule 1.
Rule 2. Motion
(a)
(b)
(c)
(d)
(As amended
Advisory Committee Note
Under these rules the application for relief is in the form of a motion rather than a petition (see rule 1 and advisory committee note). Therefore, there is no requirement that the movant name a respondent. This is consistent with 28 U.S.C. §2255. The United States Attorney for the district in which the judgment under attack was entered is the proper party to oppose the motion since the federal government is the movant's adversary of record.
If the movant is attacking a federal judgment which will subject him to future custody, he must be in present custody (see rule 1 and advisory committee note) as the result of a state or federal governmental action. He need not alter the nature of the motion by trying to include the government officer who presently has official custody of him as a psuedo-respondent, or third-party plaintiff, or other fabrication. The court hearing his motion attacking the future custody can exercise jurisdiction over those having him in present custody without the use of artificial pleading devices.
There is presently a split among the courts as to whether a person currently in state custody may use a §2255 motion to obtain relief from a federal judgment under which he will be subjected to custody in the future. Negative, see Newton v. United States, 329 F.Supp. 90 (S.D. Texas 1971); affirmative, see Desmond v. The United States Board of Parole, 397 F.2d 386 (1st Cir. 1968), cert. denied, 393 U.S. 919 (1968); and Paalino v. United States, 314 F.Supp. 875 (C.D.Cal. 1970). It is intended that these rules settle the matter in favor of the prisoner's being able to file a §2255 motion for relief under those circumstances. The proper district in which to file such a motion is the one in which is situated the court which rendered the sentence under attack.
Under rule 35, Federal Rules of Criminal Procedure, the court may correct an illegal sentence or a sentence imposed in an illegal manner, or may reduce the sentence. This remedy should be used, rather than a motion under these §2255 rules, whenever applicable, but there is some overlap between the two proceedings which has caused the courts difficulty.
The movant should not be barred from an appropriate remedy because he has misstyled his motion. See United States v. Morgan, 346 U.S. 502, 505 (1954). The court should construe it as whichever one is proper under the circumstances and decide it on its merits. For a §2255 motion construed as a rule 35 motion, see Heflin v. United States, 358 U.S. 415 (1959); and United States v. Coke, 404 F.2d 836 (2d Cir. 1968). For writ of error coram nobis treated as a rule 35 motion, see Hawkins v. United States, 324 F.Supp. 223 (E.D.Texas, Tyler Division 1971). For a rule 35 motion treated as a §2255 motion, see Moss v. United States, 263 F.2d 615 (5th Cir. 1959); Jones v. United States, 400 F.2d 892 (8th Cir. 1968), cert. denied 394 U.S. 991 (1969); and United States v. Brown, 413 F.2d 878 (9th Cir. 1969), cert. denied, 397 U.S. 947 (1970).
One area of difference between §2255 and rule 35 motions is that for the latter there is no requirement that the movant be "in custody." Heflin v. United States, 358 U.S. 415, 418, 422 (1959); Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957). Compare with rule 1 and advisory committee note for §2255 motions. The importance of this distinction has decreased since Peyton v. Rowe, 391 U.S. 54 (1968), but it might still make a difference in particular situations.
A rule 35 motion is used to attack the sentence imposed, not the basis for the sentence. The court in Gilinsky v. United States, 335 F.2d 914, 916 (9th Cir. 1964), stated, "a Rule 35 motion presupposes a valid conviction. * * * [C]ollateral attack on errors allegedly committed at trial is not permissible under Rule 35." By illustration the court noted at page 917: "a Rule 35 proceeding contemplates the correction of a sentence of a court having jurisdiction. * * * [J]urisdictional defects * * * involve a collateral attack, they must ordinarily be presented under 28 U.S.C. §2255." In United States v. Semet, 295 F.Supp. 1084 (E.D. Okla. 1968), the prisoner moved under rule 35 and §2255 to invalidate the sentence he was serving on the grounds of his failure to understand the charge to which he pleaded guilty. The court said:
As regards Defendant's Motion under Rule 35, said Motion must be denied as its presupposes a valid conviction of the offense with which he was charged and may be used only to attack the sentence. It may not be used to examine errors occurring prior to the imposition of sentence.
295 F.Supp. at 1085
See also: Moss v. United States, 263 F.2d at 616; Duggins v. United States, 240 F. 2d at 484; Migdal v. United States, 298 F.2d 513, 514 (9th Cir. 1961); Jones v. United States, 400 F.2d at 894; United States v. Coke, 404 F.2d at 847; and United States v. Brown, 413 F.2d at 879.
A major difficulty in deciding whether rule 35 or §2255 is the proper remedy is the uncertainty as to what is meant by an "illegal sentence." The Supreme Court dealt with this issue in Hill v. United States, 368 U.S. 424 (1962). The prisoner brought a §2255 motion to vacate sentence on the ground that he had not been given a Fed.R.Crim. P. 32(a) opportunity to make a statement in his own behalf at the time of sentencing. The majority held this was not an error subject to collateral attack under §2255. The five-member majority considered the motion as one brought pursuant to rule 35, but denied relief, stating:
[T]he narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence. The sentence in this case was not illegal. The punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect.
368 U.S. at 430
The four dissenters felt the majority definition of "illegal" was too narrow.
[Rule 35] provides for the correction of an "illegal sentence" without regard to the reasons why that sentence is illegal and contains not a single word to support the Court's conclusion that only a sentence illegal by reason of the punishment it imposes is "illegal" within the meaning of the Rule. I would have thought that a sentence imposed in an illegal manner-whether the amount or form of the punishment meted out constitutes an additional violation of law or not-would be recognized as an "illegal sentence" under any normal reading of the English language.
368 U.S. at 431–432
The 1966 amendment of rule 35 added language permitting correction of a sentence imposed in an "illegal manner." However, there is a 120-day time limit on a motion to do this, and the added language does not clarify the intent of the rule or its relation to §2255.
The courts have been flexible in considering motions under circumstances in which relief might appear to be precluded by Hill v. United States. In Peterson v. United States, 432 F.2d 545 (8th Cir. 1970), the court was confronted with a motion for reduction of sentence by a prisoner claiming to have received a harsher sentence than his codefendants because he stood trial rather than plead guilty. He alleged that this violated his constitutional right to a jury trial. The court ruled that, even though it was past the 120-day time period for a motion to reduce sentence, the claim was still cognizable under rule 35 as a motion to correct an illegal sentence.
The courts have made even greater use of §2255 in these types of situations. In United States v. Lewis, 392 F.2d 440 (4th Cir. 1968), the prisoner moved under §2255 and rule 35 for relief from a sentence he claimed was the result of the judge's misunderstanding of the relevant sentencing law. The court held that he could not get relief under rule 35 because it was past the 120 days for correction of a sentence imposed in an illegal manner and under Hill v. United States it was not an illegal sentence. However, §2255 was applicable because of its "otherwise subject to collateral attack" language. The flaw was not a mere trial error relating to the finding of guilt, but a rare and unusual error which amounted to "exceptional circumstances" embraced in §2255's words "collateral attack." See 368 U.S. at 444 for discussion of other cases allowing use of §2255 to attack the sentence itself in similar circumstances, especially where the judge has sentenced out of a misapprehension of the law.
In United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970), the court allowed a prisoner who was past the time limit for a proper rule 35 motion to use §2255 to attack the sentence which he received upon a plea of guilty on the ground that it was induced by an unfulfilled promise of the prosecutor to recommend leniency. The court specifically noted that under §2255 this was a proper collateral attack on the sentence and there was no need to attack the conviction as well.
The court in United States v. Malcolm, 432 F.2d 809, 814, 818 (2d Cir. 1970), allowed a prisoner to challenge his sentence under §2255 without attacking the conviction. It held rule 35 inapplicable because the sentence was not illegal on its face, but the manner in which the sentence was imposed raised a question of the denial of due process in the sentencing itself which was cognizable under §2255.
The flexible approach taken by the courts in the above cases seems to be the reasonable way to handle these situations in which rule 35 and §2255 appear to overlap. For a further discussion of this problem, see C. Wright, Federal Practice and Procedure; Criminal §§581–587 (1969, Supp. 1975).
See the advisory committee note to rule 2 of the §2254 rules for further discussion of the purposes and intent of rule 2 of these §2255 rules.
1982 Amendment
Subdivision (b). The amendment takes into account 28 U.S.C. §1746, enacted after adoption of the §2255 rules. Section 1746 provides that in lieu of an affidavit an unsworn statement may be given under penalty of perjury in substantially the following form if executed within the United States, its territories, possessions or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)." The statute is "intended to encompass prisoner litigation," and the statutory alternative is especially appropriate in such cases because a notary might not be readily available. Carter v. Clark, 616 F.2d 228 (5th Cir. 1980). The §2255 forms have been revised accordingly.
Amendments
1976-Subd. (b).
Subd. (d).
Rule 3. Filing Motion
(a)
(b)
Advisory Committee Note
There is no filing fee required of a movant under these rules. This is a change from the practice of charging $15 and is done to recognize specifically the nature of a §2255 motion as being a continuation of the criminal case whose judgment is under attack.
The long-standing practice of requiring a $15 filing fee has followed from 28 U.S.C. §1914(a) whereby "parties instituting any civil action * * * pay a filing fee of $15, except that on an application for a writ of habeas corpus the filing fee shall be $5." This has been held to apply to a proceeding under §2255 despite the rationale that such a proceeding is a motion and thus a continuation of the criminal action. (See note to rule 1.)
A motion under Section 2255 is a civil action and the clerk has no choice but to charge a $15.00 filing fee unless by leave of court it is filed in forma pauperis.
McCune v. United States, 406 F.2d 417, 419 (6th Cir. 1969).
Although the motion has been considered to be a new civil action in the nature of habeas corpus for filing purposes, the reduced fee for habeas has been held not applicable. The Tenth Circuit considered the specific issue in Martin v. United States, 273 F.2d 775 (10th Cir. 1960), cert. denied, 365 U.S. 853 (1961), holding that the reduced fee was exclusive to habeas petitions.
Counsel for Martin insists that, if a docket fee must be paid, the amount is $5 rather than $15 and bases his contention on the exception contained in 28 U.S.C. §1914 that in habeas corpus the fee is $5. This reads into §1914 language which is not there. While an application under §2255 may afford the same relief as that previously obtainable by habeas corpus, it is not a petition for a writ of habeas corpus. A change in §1914 must come from Congress.
273 F.2d at 778
Although for most situations §2255 is intended to provide to the federal prisoner a remedy equivalent to habeas corpus as used by state prisoners, there is a major distinction between the two. Calling a §2255 request for relief a motion rather than a petition militates toward charging no new filing fee, not an increased one. In the absence of convincing evidence to the contrary, there is no reason to suppose that Congress did not mean what it said in making a §2255 action a motion. Therefore, as in other motions filed in a criminal action, there is no requirement of a filing fee. It is appropriate that the present situation of docketing a §2255 motion as a new action and charging a $15 filing fee be remedied by the rule when the whole question of §2255 motions is thoroughly thought through and organized.
Even though there is no need to have a forma pauperis affidavit to proceed with the action since there is no requirement of a fee for filing the motion the affidavit remains attached to the form to be supplied potential movants. Most such movants are indigent, and this is a convenient way of getting this into the official record so that the judge may appoint counsel, order the government to pay witness fees, allow docketing of an appeal, and grant any other rights to which an indigent is entitled in the course of a §2255 motion, when appropriate to the particular situation, without the need for an indigency petition and adjudication at such later point in the proceeding. This should result in a streamlining of the process to allow quicker disposition of these motions.
For further discussion of this rule, see the advisory committee note to rule 3 of the §2254 rules.
Rule 4. Preliminary Consideration by Judge
(a)
(b)
Advisory Committee Note
Rule 4 outlines the procedure for assigning the motion to a specific judge of the district court and the options available to the judge and the government after the motion is properly filed.
The long-standing majority practice in assigning motions made pursuant to §2255 has been for the trial judge to determine the merits of the motion. In cases where the §2255 motion is directed against the sentence, the merits have traditionally been decided by the judge who imposed sentence. The reasoning for this was first noted in Currell v. United States, 173 F.2d 348, 348–349 (4th Cir. 1949):
Complaint is made that the judge who tried the case passed upon the motion. Not only was there no impropriety in this, but it is highly desirable in such cases that the motions be passed on by the judge who is familiar with the facts and circumstances surrounding the trial, and is consequently not likely to be misled by false allegations as to what occurred.
This case, and its reasoning, has been almost unanimously endorsed by other courts dealing with the issue.
Commentators have been critical of having the motion decided by the trial judge. See Developments in the Law-Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1206–1208 (1970).
[T]he trial judge may have become so involved with the decision that it will be difficult for him to review it objectively. Nothing in the legislative history suggests that "court" refers to a specific judge, and the procedural advantages of section 2255 are available whether or not the trial judge presides at the hearing.
The theory that Congress intended the trial judge to preside at a section 2255 hearing apparently originated in Carvell v. United States, 173 F.2d 348 (4th Cir. 1949) (per curiam), where the panel of judges included Chief Judge Parker of the Fourth Circuit, chairman of the Judicial Conference committee which drafted section 2255. But the legislative history does not indicate that Congress wanted the trial judge to preside. Indeed the advantages of section 2255 can all be achieved if the case is heard in the sentencing district, regardless of which judge hears it. According to the Senate committee report the purpose of the bill was to make the proceeding a part of the criminal action so the court could resentence the applicant, or grant him a new trial. (A judge presiding over a habeas corpus action does not have these powers.) In addition, Congress did not want the cases heard in the district of confinement because that tended to concentrate the burden on a few districts, and made it difficult for witnesses and records to be produced.
83 Harv.L.Rev. at 1207–1208
The Court of Appeals for the First Circuit has held that a judge other than the trial judge should rule on the 2255 motion. See Halliday v. United States, 380 F.2d 270 (1st Cir. 1967).
There is a procedure by which the movant can have a judge other than the trial judge decide his motion in courts adhering to the majority rule. He can file an affidavit alleging bias in order to disqualify the trial judge. And there are circumstances in which the trial judge will, on his own, disqualify himself. See, e.g., Webster v. United States, 330 F.Supp. 1080 (1972). However, there has been some questioning of the effectiveness of this procedure. See Developments in the Law-Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1200–1207 (1970).
Subdivision (a) adopts the majority rule and provides that the trial judge, or sentencing judge if different and appropriate for the particular motion, will decide the motion made pursuant to these rules, recognizing that, under some circumstances, he may want to disqualify himself. A movant is not without remedy if he feels this is unfair to him. He can file an affidavit of bias. And there is the right to appellate review if the trial judge refuses to grant his motion. Because the trial judge is thoroughly familiar with the case, there is obvious administrative advantage in giving him the first opportunity to decide whether there are grounds for granting the motion.
Since the motion is part of the criminal action in which was entered the judgment to which it is directed, the files, records, transcripts, and correspondence relating to that judgment are automatically available to the judge in his consideration of the motion. He no longer need order them incorporated for that purpose.
Rule 4 has its basis in §2255 (rather than 28 U.S.C. §2243 in the corresponding habeas corpus rule) which does not have a specific time limitation as to when the answer must be made. Also, under §2255, the United States Attorney for the district is the party served with the notice and a copy of the motion and required to answer (when appropriate). Subdivision (b) continues this practice since there is no respondent involved in the motion (unlike habeas) and the United States Attorney, as prosecutor in the case in question, is the most appropriate one to defend the judgment and oppose the motion.
The judge has discretion to require an answer or other appropriate response from the United States Attorney. See advisory committee note to rule 4 of the §2254 rules.
Rule 5. Answer; Contents
(a)
(b)
Advisory Committee Note
Unlike the habeas corpus statutes (see 28 U.S.C. §§2243, 2248) §2255 does not specifically call for a return or answer by the United States Attorney or set any time limits as to when one must be submitted. The general practice, however, if the motion is not summarily dismissed, is for the government to file an answer to the motion as well as counter-affidavits, when appropriate. Rule 4 provides for an answer to the motion by the United States Attorney, and rule 5 indicates what its contents should be.
There is no requirement that the movant exhaust his remedies prior to seeking relief under §2255. However, the courts have held that such a motion is inappropriate if the movant is simultaneously appealing the decision.
We are of the view that there is no jurisdictional bar to the District Court's entertaining a Section 2255 motion during the pendency of a direct appeal but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances.
Womack v. United States, 395 F.2d 630, 631 (D.C.Cir. 1968)
Also see Masters v. Eide, 353 F.2d 517 (8th Cir. 1965). The answer may thus cut short consideration of the motion if it discloses the taking of an appeal which was omitted from the form motion filed by the movant.
There is nothing in §2255 which corresponds to the §2248 requirement of a traverse to the answer. Numerous cases have held that the government's answer and affidavits are not conclusive against the movant, and if they raise disputed issues of fact a hearing must be held. Machibroda v. United States, 368 U.S. 487, 494, 495 (1962); United States v. Salerno, 290 F.2d 105, 106 (2d Cir. 1961); Romero v. United States, 327 F.2d 711, 712 (5th Cir. 1964); Scott v. United States, 349 F.2d 641, 642, 643 (6th Cir. 1965); Schiebelhut v. United States, 357 F.2d 743, 745 (6th Cir. 1966); and Del Piano v. United States, 362 F.2d 931, 932, 933 (3d Cir. 1966). None of these cases make any mention of a traverse by the movant to the government's answer. As under rule 5 of the §2254 rules, there is no intention here that such a traverse be required, except under special circumstances. See advisory committee note to rule 9.
Subdivision (b) provides for the government to supplement its answers with appropriate copies of transcripts or briefs if for some reason the judge does not already have them under his control. This is because the government will in all probability have easier access to such papers than the movant, and it will conserve the court's time to have the government produce them rather than the movant, who would in most instances have to apply in forma pauperis for the government to supply them for him anyway.
For further discussion, see the advisory committee note to rule 5 of the §2254 rules.
Rule 6. Discovery
(a)
(b)
(c)
Advisory Committee Note
This rule differs from the corresponding discovery rule under the §2254 rules in that it includes the processes of discovery available under the Federal Rules of Criminal Procedure as well as the civil. This is because of the nature of a §2255 motion as a continuing part of the criminal proceeding (see advisory committee note to rule 1) as well as a remedy analogous to habeas corpus by state prisoners.
See the advisory committee note to rule 6 of the §2254 rules. The discussion there is fully applicable to discovery under these rules for §2255 motions.
Rule 7. Expansion of Record
(a)
(b)
(c)
(d)
Advisory Committee Note
It is less likely that the court will feel the need to expand the record in a §2255 proceeding than in a habeas corpus proceeding, because the trial (or sentencing) judge is the one hearing the motion (see rule 4) and should already have a complete file on the case in his possession. However, rule 7 provides a convenient method for supplementing his file if the case warrants it.
See the advisory committee note to rule 7 of the §2254 rules for a full discussion of reasons and procedures for expanding the record.
Rule 8. Evidentiary Hearing
(a)
(b)
(1) When designated to do so in accordance with 28 U.S.C. §636(b), a magistrate may conduct hearings, including evidentiary hearings, on the motion, and submit to a judge of the court proposed findings and recommendations for disposition.
(2) The magistrate shall file proposed findings and recommendations with the court and a copy shall forthwith be mailed to all parties.
(3) Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.
(4) A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify in whole or in part any findings or recommendations made by the magistrate.
(c)
(d)
(1)
(2)
(As amended
Advisory Committee Note
The standards for §2255 hearings are essentially the same as for evidentiary hearings under a habeas petition, except that the previous federal fact-finding proceeding is in issue rather than the state's. Also §2255 does not set specific time limits for holding the hearing, as does §2243 for a habeas action. With these minor differences in mind, see the advisory committee note to rule 8 of §2254 rules, which is applicable to rule 8 of these §2255 rules.
1993 Amendment
The amendment to Rule 8 is one of a series of parallel amendments to Federal Rules of Criminal Procedure 32, 32.1, and 46 which extend the scope of Rule 26.2 (Production of Witness Statements) to proceedings other than the trial itself. The amendments are grounded on the compelling need for accurate and credible information in making decisions concerning the defendant's liberty. See the Advisory Committee Note to Rule 26.2(g). A few courts have recognized the authority of a judicial officer to order production of prior statements by a witness at a Section 2255 hearing, see, e.g., United States v. White, 342 F.2d 379, 382, n.4 (4th Cir. 1959). The amendment to Rule 8 grants explicit authority to do so. The amendment is not intended to require production of a witness's statement before the witness actually presents oral testimony.
Amendments
1976-Subd. (b).
Subd. (c).
Effective Date of 1976 Amendment
Amendments made by
Rule 9. Delayed or Successive Motions
(a)
(b)
(As amended
Advisory Committee Note
Unlike the statutory provisions on habeas corpus (28 U.S.C. §§2241–2254), §2255 specifically provides that "a motion for such relief may be made at any time." [Emphasis added.] Subdivision (a) provides that delayed motions may be barred from consideration if the government has been prejudiced in its ability to respond to the motion by the delay and the movant's failure to seek relief earlier is not excusable within the terms of the rule. Case law, dealing with this issue, is in conflict.
Some courts have held that the literal language of §2255 precludes any possible time bar to a motion brought under it. In Heflin v. United States, 358 U.S. 415 (1959), the concurring opinion noted:
The statute [28 U.S.C. §2255] further provides; "A motion * * * may be made at any time." This * * * simply means that, as in habeas corpus, there is no statute of limitations, no res judicata, and that the doctrine of laches is inapplicable.
358 U.S. at 420
McKinney v. United States, 208 F.2d 844 (D.C.Cir. 1953) reversed the district court's dismissal of a §2255 motion for being too late, the court stating:
McKinney's present application for relief comes late in the day: he has served some fifteen years in prison. But tardiness is irrelevant where a constitutional issue is raised and where the prisoner is still confined.
208 F.2d at 846, 847
In accord, see: Juelich v. United States, 300 F.2d 381, 383 (5th Cir. 1962); Conners v. United States, 431 F.2d 1207, 1208 (9th Cir. 1970); Sturrup v. United States, 218 F.Supp. 279, 281 (E.D.N.Car. 1963); and Banks v. United States, 319 F.Supp. 649, 652 (S.D.N.Y. 1970).
It has also been held that delay in filing a §2255 motion does not bar the movant because of lack of reasonable diligence in pressing the claim.
The statute [28 U.S.C. §2255], when it states that the motion may be made at any time, excludes the addition of a showing of diligence in delayed filings. A number of courts have considered contentions similar to those made here and have concluded that there are no time limitations. This result excludes the requirement of diligence which is in reality a time limitation.
Haier v. United States, 334 F.2d 441, 442 (10th Cir. 1964)
Other courts have recognized that delay may have a negative effect on the movant. In Raines v. United States, 423 F.2d 526 (4th Cir. 1970), the court stated:
[B]oth petitioners' silence for extended periods, one for 28 months and the other for nine years, serves to render their allegations less believable. "Although a delay in filing a section 2255 motion is not a controlling element * * * it may merit some consideration * * *."
423 F.2d at 531
In Aiken v. United States, 191 F.Supp. 43, 50 (M.D.N.Car. 1961), aff'd 296 F.2d 604 (4th Cir. 1961), the court said: "While motions under 28 U.S.C. §2255 may be made at any time, the lapse of time affects the good faith and credibility of the moving party." For similar conclusions, see: Parker v. United States, 358 F.2d 50, 54 n. 4 (7th Cir. 1965), cert. denied, 386 U.S. 916 (1967); Le Clair v. United States, 241 F.Supp. 819, 824 (N.D. Ind. 1965); Malone v. United States, 299 F.2d 254, 256 (6th Cir. 1962), cert. denied, 371 U.S. 863 (1962); Howell v. United States, 442 F.2d 265, 274 (7th Cir. 1971); and United States v. Wiggins, 184 F. Supp. 673, 676 (D.C.Cir. 1960).
There have been holdings by some courts that a delay in filing a §2255 motion operates to increase the burden of proof which the movant must meet to obtain relief. The reasons for this, as expressed in United States v. Bostic, 206 F.Supp. 855 (D.C.Cir. 1962), are equitable in nature.
Obviously, the burden of proof on a motion to vacate a sentence under 28 U.S.C. §2255 is on the moving party. . . . The burden is particularly heavy if the issue is one of fact and a long time has elapsed since the trial of the case. While neither the statute of limitations nor laches can bar the assertion of a constitutional right, nevertheless, the passage of time may make it impracticable to retry a case if the motion is granted and a new trial is ordered. No doubt, at times such a motion is a product of an afterthought. Long delay may raise a question of good faith.
206 F.Supp. at 856–857
See also United States v. Wiggins, 184 F.Supp. at 676.
A requirement that the movant display reasonable diligence in filing a §2255 motion has been adopted by some courts dealing with delayed motions. The court in United States v. Moore, 166 F.2d 102 (7th Cir. 1948), cert. denied, 334 U.S. 849 (1948), did this, again for equitable reasons.
[W]e agree with the District Court that the petitioner has too long slept upon his rights. * * * [A]pparently there is no limitation of time within which * * * a motion to vacate may be filed, except that an applicant must show reasonable diligence in presenting his claim. * * *
The reasons which support the rule requiring diligence seem obvious. * * * Law enforcement officials change, witnesses die, memories grow dim. The prosecuting tribunal is put to a disadvantage if an unexpected retrial should be necessary after long passage of time.
166 F.2d at 105
In accord see Desmond v. United States, 333 F.2d 378, 381 (1st Cir. 1964), on remand, 345 F.2d 225 (1st Cir. 1965).
One of the major arguments advanced by the courts which would penalize a movant who waits an unduly long time before filing a §2255 motion is that such delay is highly prejudicial to the prosecution. In Desmond v. United States, writing of a §2255 motion alleging denial of effective appeal because of deception by movant's own counsel, the court said:
[A]pplications for relief such as this must be made promptly. It will not do for a prisoner to wait until government witnesses have become unavailable as by death, serious illness or absence from the country, or until the memory of available government witnesses has faded. It will not even do for a prisoner to wait any longer than is reasonably necessary to prepare appropriate moving papers, however inartistic, after discovery of the deception practiced upon him by his attorney.
333 F.2d at 381
In a similar vein are United States v. Moore and United States v. Bostic, supra, and United States v. Wiggins, 184 F. Supp. at 676.
Subdivision (a) provides a flexible, equitable time limitation based on laches to prevent movants from withholding their claims so as to prejudice the government both in meeting the allegations of the motion and in any possible retrial. It includes a reasonable diligence requirement for ascertaining possible grounds for relief. If the delay is found to be excusable, or nonprejudicial to the government, the time bar is inoperative.
Subdivision (b) is consistent with the language of §2255 and relevant case law.
The annexed form is intended to serve the same purpose as the comparable one included in the §2254 rules.
For further discussion applicable to this rule, see the advisory committee note to rule 9 of the §2254 rules.
Amendments
1976-Subd. (a).
Subd. (b).
Rule 10. Powers of Magistrates
The duties imposed upon the judge of the district court by these rules may be performed by a United States magistrate pursuant to 28 U.S.C. §636.
(As amended
Advisory Committee Note
See the advisory committee note to rule 10 of the §2254 rules for a discussion fully applicable here as well.
1979 Amendment
This amendment conforms the rule to 18 U.S.C. §636. See Advisory Committee Note to rule 10 of the Rules Governing Section 2254 Cases in the United States District Courts.
Amendments
1976-
Change of Name
Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of
Rule 11. Time for Appeal
The time for appeal from an order entered on a motion for relief made pursuant to these rules is as provided in Rule 4(a) of the Federal Rules of Appellate Procedure. Nothing in these rules shall be construed as extending the time to appeal from the original judgment of conviction in the district court.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)
Advisory Committee Note
Rule 11 is intended to make clear that, although a §2255 action is a continuation of the criminal case, the bringing of a §2255 action does not extend the time.
1979 Amendment
Prior to the promulgation of the Rules Governing Section 2255 Proceedings, the courts consistently held that the time for appeal in a section 2255 case is as provided in Fed.R.App.P. 4(a), that is, 60 days when the government is a party, rather than as provided in appellate rule 4(b), which says that the time is 10 days in criminal cases. This result has often been explained on the ground that rule 4(a) has to do with civil cases and that "proceedings under section 2255 are civil in nature." E.g., Rothman v. United States, 508 F.2d 648 (3d Cir. 1975). Because the new section 2255 rules are based upon the premise "that a motion under §2255 is a further step in the movant's criminal case rather than a separate civil action," see Advisory Committee Note to rule 1, the question has arisen whether the new rules have the effect of shortening the time for appeal to that provided in appellate rule 4(b). A sentence has been added to rule 11 in order to make it clear that this is not the case.
Even though section 2255 proceedings are a further step in the criminal case, the added sentence correctly states current law. In United States v. Hayman, 342 U.S. 205 (1952), the Supreme Court noted that such appeals "are governed by the civil rules applicable to appeals from final judgments in habeas corpus actions." In support, the Court cited Mercado v. United States, 183 F.2d 486 (1st Cir. 1950), a case rejecting the argument that because §2255 proceedings are criminal in nature the time for appeal is only 10 days. The Mercado court concluded that the situation was governed by that part of 28 U.S.C. §2255 which reads: "An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus." Thus, because appellate rule 4(a) is applicable in habeas cases, it likewise governs in §2255 cases even though they are criminal in nature.
Rule 12. Federal Rules of Criminal and Civil Procedure; Extent of Applicability
If no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules, or any applicable statute, and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.
Advisory Committee Note
This rule differs from rule 11 of the §2254 rules in that it includes the Federal Rules of Criminal Procedure as well as the civil. This is because of the nature of a §2255 motion as a continuing part of the criminal proceeding (see advisory committee note to rule 1) as well as a remedy analogous to habeas corpus by state prisoners.
Since §2255 has been considered analogous to habeas as respects the restrictions in Fed.R.Civ.P. 81(a)(2) (see Sullivan v. United States, 198 F.Supp. 624 (S.D.N.Y. 1961)), rule 12 is needed. For discussion, see the advisory committee note to rule 11 of the §2254 rules.
References in Text
The Federal Rules of Criminal Procedure, referred to in text, are classified generally to the Appendix to Title 18, Crimes and Criminal Procedure.
The Federal Rules of Civil Procedure, referred to in text, are classified generally to the Appendix to this title.
APPENDIX OF FORMS
MODEL FORM FOR MOTIONS UNDER 28 U.S.C. §2255
Name ____________________________________________________
Prison Number __________________________________________
Place of Confinement __________________________________
United States District Court ______ District of ________
Case No. ________ (to be supplied by Clerk of U.S. District Court)
United States,
v.
____________________________________________________
(full name of movant)
(If movant has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion in the federal court which entered the judgment.)
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
(1) This motion must be legibly handwritten or typewritten, and signed by the movant under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form.
(2) Additional pages are not permitted except with respect to the facts which you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum.
(3) Upon receipt, your motion will be filed if it is in proper order. No fee is required with this motion.
(4) If you do not have the necessary funds for transcripts, counsel, appeal, and other costs connected with a motion of this type, you may request permission to proceed in forma pauperis, in which event you must execute the declaration on the last page, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution.
(5) Only judgments entered by one court may be challenged in a single motion. If you seek to challenge judgments entered by different judges or divisions either in the same district or in different districts, you must file separate motions as to each such judgment.
(6) Your attention is directed to the fact that you must include all grounds for relief and all facts supporting such grounds for relief in the motion you file seeking relief from any judgment of conviction.
(7) When the motion is fully completed, the original and two copies must be mailed to the Clerk of the United States District Court whose address is______
______________________________________________________
(8) Motions which do not conform to these instructions will be returned with a notation as to the deficiency.
MOTION
1. Name and location of court which entered the judgment of conviction under attack ______________
2. Date of judgment of conviction ____________________
3. Length of sentence __________________________________
4. Nature of offense involved (all counts) ____________
______________________________________________________
______________________________________________________
______________________________________________________
5. What was your plea? (Check one)
If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details:
______________________________________________________
______________________________________________________
______________________________________________________
6. Kind of trial: (Check one)
7. Did you testify at the trial?
Yes ☐ No ☐
8. Did you appeal from the judgment of conviction?
Yes ☐ No ☐
9. If you did appeal, answer the following:
(a) Name of court ________________________________
(b) Result ________________________________________
(c) Date of result __________________________________
10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications or motions with respect to this judgment in any federal court?
Yes ☐ No ☐
11. If your answer to 10 was "yes," give the following information:
____________________________________________
XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX
(b) As to any second petition, application or
____________________________________________
(3) Grounds raised ____________________________
____________________________________________
____________________________________________
____________________________________________
____________________________________________
(c) As to any third petition, application or
____________________________________________
____________________________________________
____________________________________________
____________________________________________
(d) Did you appeal, to an appellate federal court having jurisdiction, the result of action taken on any petition, application or motion?
(e) If you did not appeal from the adverse action on any petition, application or motion, explain briefly why you did not:
________________________________________________
________________________________________________
________________________________________________
12. State concisely every ground on which you claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and facts supporting same.
For your information, the following is a list of the most frequently raised grounds for relief in these proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you have other than those listed. However, you should raise in this motion all available grounds (relating to this conviction) on which you based your allegations that you are being held in custody unlawfully.
Do not check any of these listed grounds. If you select one or more of these grounds for relief, you must allege facts. The motion will be returned to you if you merely check (a) through (j) or any one of the grounds.
(a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or with understanding of the nature of the charge and the consequences of the plea.
(b) Conviction obtained by use of coerced confession.
(c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure.
(d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest.
(e) Conviction obtained by a violation of the privilege against self-incrimination.
(f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant.
(g) Conviction obtained by a violation of the protection against double jeopardy.
(h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impanelled.
(i) Denial of effective assistance of counsel.
(j) Denial of right of appeal.
A. Ground one: ____________________________________
____________________________________________________
Supporting FACTS (tell your story briefly without citing cases or law): ____________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
B. Ground two: __________________________________
____________________________________________________
Supporting FACTS (tell your story briefly without citing cases or law): ____________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
C. Ground three: __________________________________
____________________________________________________
Supporting FACTS (tell your story briefly without citing cases or law): ____________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
D. Ground four: __________________________________
____________________________________________________
Supporting FACTS (tell your story briefly without citing cases or law): ____________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
13. If any of the grounds listed in 12A, B, C, and D were not previously presented, state briefly what grounds were not so presented, and give your reasons for not presenting them:
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
14. Do you have any petition or appeal now pending in any court as to the judgment under attack?
Yes ☐ No ☐
15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein:
(a) At preliminary hearing ______________________
________________________________________________
(b) At arraignment and plea ______________________
________________________________________________
(c) At trial ________________________________________
________________________________________________
(d) At sentencing ________________________________
________________________________________________
(e) On appeal ____________________________________
________________________________________________
(f) In any post-conviction proceeding ____________
________________________________________________
(g) On appeal from any adverse ruling in a post-
conviction proceeding ________________________
________________________________________________
16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at approximately the same time?
Yes ☐ No ☐
17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack?
Yes ☐ No ☐
______________________________________________
______________________________________________
______________________________________________
Wherefore, movant prays that the Court grant him all relief to which he may be entitled in this proceeding.
____________________________
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on __________.
(date)
____________________________
Signature of Movant
IN FORMA PAUPERIS DECLARATION
____________________________________________________
[Insert appropriate court]
United States
DECLARATION IN
SUPPORT
v.
OF REQUEST
____________________________
TO PROCEED
(Movant)
IN FORMA
PAUPERIS
I, ____________________________, declare that I am the movant in the above entitled case; that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that because of my poverty, I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am entitled to relief.
1. Are you presently employed? Yes ☐ No ☐
a. If the answer is "yes," state the amount of your salary or wages per month, and give the name and address of your employer.
__________________________________________________
__________________________________________________
b. If the answer is "no," state the date of last employment and the amount of the salary and wages per month which you received.
__________________________________________________
__________________________________________________
2. Have you received within the past twelve months any money from any of the following sources?
a. Business, profession or form of self-employment? Yes ☐ No ☐
b. Rent payments, interest or dividends?
Yes ☐ No ☐
c. Pensions, annuities or life insurance payments? Yes ☐ No ☐
d. Gifts or inheritances? Yes ☐ No ☐
e. Any other sources? Yes ☐ No ☐
If the answer to any of the above is "yes," describe each source of money and state the amount received from each during the past twelve months.
______________________________________________________
______________________________________________________
______________________________________________________
3. Do you own any cash, or do you have money in a checking or savings account?
Yes ☐ No ☐ (Include any funds in prison accounts)
If the answer is "yes," state the total value of the items owned.
______________________________________________________
______________________________________________________
______________________________________________________
4. Do you own real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)?
Yes ☐ No ☐
If the answer is "yes," describe the property and state its approximate value.
______________________________________________________
______________________________________________________
5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how much you contribute toward their support.
______________________________________________________
______________________________________________________
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on __________.
(date)
____________________________
Signature of Movant
CERTIFICATE
I hereby certify that the movant herein has the sum of $________ on account to his credit at the ________ institution where he is confined.
I further certify that movant likewise has the following securities to his credit according to the records of said ________ institution:
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
____________________________
Authorized Officer of
Institution
(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)
MODEL FORM FOR USE IN 28 U.S.C. §2255 CASES INVOLVING A RULE 9 ISSUE
Form No. 9
United States District Court
____________________ District of ____________________
Case No. ________
United States
v.
____________________________
(Name of Movant)
Movant's Response as to Why His Motion Should Not be Barred Under Rule 9
Explanation and Instructions-Read Carefully
(I) Rule 9. Delayed or Successive Motions.
(a) Delayed motions. A motion for relief made pursuant to these rules may be dismissed if it appears that the government has been prejudiced in its ability to respond to the motion by delay in its filing unless the movant shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the government occurred.
(b) Successive motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.
(II) Your motion to vacate, set aside, or correct sentence has been found to be subject to dismissal under rule 9( ) for the following reason(s):
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
(III) This form has been sent so that you may explain why your motion contains the defect(s) noted in (II) above. It is required that you fill out this form and send it back to the court within ________ days. Failure to do so will result in the automatic dismissal of your motion.
(IV) When you have fully completed this form, the original and two copies must be mailed to the Clerk of the United States District Court whose address is ________________________________
__________________________________________________
(V) This response must be legibly handwritten or typewritten, and signed by the movant under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form.
(VI) Additional pages are not permitted except with respect to the facts which you rely upon in item 4 or 5 in the response. Any citation of authorities should be kept to an absolute minimum and is only appropriate if there has been a change in the law since the judgment you are attacking was rendered.
(VII) Respond to 4 or 5, not to both, unless (II) above indicates that you must answer both sections.
RESPONSE
1. Have you had the assistance of an attorney, other law-trained personnel, or writ writers since the conviction your motion is attacking was entered?
Yes ☐ No ☐
2. If you checked "Yes" above, specify as precisely as you can the period(s) of time during which you received such assistance, up to and including the present.
______________________________________________________
3. Describe the nature of the assistance, including the names of those who rendered it to you.
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
4. If your motion is in jeopardy because of delay prejudicial to the government under rule 9(a), explain why you feel the delay has not been prejudicial and/or why the delay is excusable under the terms of 9(a). This should be done by relying upon FACTS, not your opinions or conclusions.
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
5. If your motion is in jeopardy under rule 9(b) because it asserts the same grounds as a previous motion, explain why you feel it deserves a reconsideration. If its fault under rule 9(b) is that it asserts new grounds which should have been included in a prior motion, explain why you are raising these grounds now rather than previously. Your explanation should rely on FACTS, not your opinions or conclusions.
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on __________.
(date)
____________________________
Signature of Movant
(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)